Electronic Communications Code

11 May 2018

In December 2017 a new Electronic Communications Code took effect under the Communications Act 2003 to make it easier for network operators to install and maintain apparatus such as phone masts, exchanges and cabinets on public and private land.

The Electronic Communications Code is set out in Schedule 3a to the Communications Act and is designed to facilitate the installation and maintenance of electronic communications networks.

The Code only has effect in the case of a person to whom it is applied by a direction given by Ofcom (or, in the case of the Secretary of State or any Northern Ireland department, where the Secretary of State or that department is providing or proposing to provide an electronic communications network).

The Grant of Code powers is intended to assist persons who provide an electronic communications network and/or system of infrastructure.

The Code confers rights (see below) on providers of such networks and on providers of systems of infrastructure to install and maintain apparatus on, under and over public and results in considerably simplified planning procedures.

Where the Code is applied in any person’s case, it may be subject to restrictions and conditions set out in other legislation from time to time.

Code powers allow an operator to have access to the public highway to perform certain street works necessary for the construction, inspection, maintenance, adjustment, repair and/or alteration of associated network apparatus, without the need for a specific street works licence.

Code powers also enable an operator to benefit from certain immunities from the Town and Country Planning legislation

The Code confers “code rights” on a person with Code powers. A “code right is a right —

to install electronic communications apparatus on, under or over the land;

to keep installed apparatus which is on, under or over land;

to inspect, maintain, and operate apparatus;

to carry out any works on the land to enable apparatus to be installed and maintained;

to gain access to land to maintain or operate apparatus;

to connect to a power supply;

to interfere with or obstruct a means of access to or from the land (whether or not any electronic communications apparatus is on, under or over the land), or

to lop or cut back any tree or other vegetation that could interfere with apparatus.

In the event that agreement cannot be reached with the owner or occupier of private land, the Code allows an operator to apply to the Court to impose an agreement which confers the Code right being sought or for the Code right to bind the landowner or occupier.

Code powers also allow an operator to claim compensation from a local authority in circumstances where that local authority has obstructed access to electronic communications apparatus in certain stipulated circumstances.

Operators wishing to deploy a network or system of infrastructure

Operators wishing to deploy a network or system of infrastructure should consider the following:

If so, is any of the new infrastructure likely to be sited on, under or over public or private land?

If so, you should consider applying to Ofcom to be granted Code powers to avoid incurring increased costs, operational delays and inefficiencies. Code powers will also help you to operate and maintain your network in an efficient, cost-effective and expedient manner.

Ofcom also has an enforcement role under s.110 of the Communications Act over compliance by Code operators with any requirement imposed by virtue of any restrictions or conditions under the Electronic Communications Code (Conditions and Restrictions) Regulations 2003, as amended (made by the Secretary of State pursuant to s.109 of the Communications Act).

The Communications Act 2003 has been amended by subsequent regulations:

With the introduction of the new Code in 2017, section 106(4)(b) of the Digital Economy Act 2017 has been changed to replace references to “conduit system” with “system of infrastructure”. Our application form is being amended to reflect the new Code framework.

Any application we receive will be an application for new Code powers on the basis of the revised grounds for application under s.106.